The remedies available to California identity theft victims under the law is the topic of this blog post. The California statutes relating to several of the remedies available for a victim of identity theft are contained in Civil Code Sections 1798.92-1798.97.
Another remedy available is that identity theft may be asserted as a partial or total affirmative defense to any lawsuit based in whole or in part on unauthorized charges made to a credit card, or other account.
In other words if the underlying debt is partially or entirely the result of identity theft, then the victim of identity theft has a valid defense to the portion of the charges that were unauthorized, and to any resulting interest or fees related to the charges.
There are other remedies available under the California Civil Code, for example, a victim of identity theft may sue affirmatively and seek injunctive relief in the form of a finding that the individual does not owe a debt.
Note that the first thing a person who is the victim of identity theft should do is file a police report immediately as soon as they realize that they have been victimized by identity theft. This is required in order to utilize the remedies in California. They should also send a written notice to the creditor attempting to collect the debt based on the unauthorized charges.
Specifically anyone who has been served with a lawsuit based on a debt or claim based in whole or in part on unauthorized charges made to a credit card, or other account due to identity theft may file a cross-complaint against the person suing them and ask the Court for affirmative relief that the individual does not owe a debt.
The law in California, specifically California Civil Code ? 1798.93[c](5), requires the victim of identity theft to provide you with a written notice at least 30 calendar days before filing any cross-complaint seeking their actual damages, attorney fees, and any other equitable relief as the Court deems appropriate.
The written notice places the creditor so notified, under a legal duty to take diligent steps to investigate the claim of identity theft. If they fail to do so, and the victim can show clear and convincing evidence that they failed to do so after being properly notified, the victim is entitled to a civil penalty of up to $30,000.00 in addition to any other damages pursuant to California Civil Code ? 1798.93[c](6).
Civil Code ? 1798.93 provides the statutory authorization for the filing of a cross-complaint to establish that a person is a victim of identity theft in connection with the claim being asserted against them by any creditor, which shall be established by a
a preponderance of the evidence.
Civil Code ? 1798.95 states in part that, ?The Court has continuing jurisdiction for 10 years from the filing of the original action in order to join related causes of action and defendants based upon the theft of the same person?s identity, the Court may also extend the jurisdiction over the matter if good cause is shown.?
The cross-complaint or any joinder of a defendant should be brought within 4 years of the date that the victim of identity theft, knew, or should have known of the identity theft. See Civil Code ? 1798.96.
The remedies that are discussed here are cumulative to the rights and remedies provided under other laws, and they do not restrict any legal actions against the person who perpetrated the identity theft. See Civil Code ? 1798.97.
As the number of incidents of identity theft have risen dramatically in California as well as the rest of the United States over the last few years, any victim of identity theft should make use of the procedures and remedies discussed in this blog post
To view the entire text of any California code section cited in this blog post, as well as any other California code section, visit the following website. http://www.leginfo.ca.gov/calaw.html
Attorneys or parties in California who would like view a sample letter to a creditor from a California victim of identity theft available by FREE download, can see below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
If you enjoy this blog post, tell others about it. It would be greatly appreciated if you would visit the author?s website at http://www.legaldocspro.net and give it a like with Google + if possible.
You can subscribe to the author?s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Source: http://legaldocspro.net/blog/?p=1475
apple store down apple live blog ohio primary cell phone jammer g8 summit netanyahu aipac
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.